Even before the pandemic, presumption laws for first responders were becoming ubiquitous. However, questions remain about whether these laws are being led by science or sympathy and how we should treat similar risks and exposures for employees not favored by presumptions. In this session at WCIvirtual 2020, panelists gave a realistic assessment of whether some states’ measures for rebutting presumptions are actually increasing already questionable financial burdens on employers. The panel tackles these issues from all sides: bench, bar, physician and claims.
- Kip Kubin – Attorney & President of the College of Workers’ Compensation Lawyers
- Neel Shah, MD – Northwest Cancer Center
- Catherine Tanaka Surbeck – Attorney at Freedman & Lorry, PC
- Judge Mark Siedlik – Chief Administrative Law Judge Kansas City/St. Joseph Divisions at Missouri Division of Workers’ Compensation
- Chris Landry – Attorney at The Monson Law Firm, LLC
Each state has its own group of presumption laws. The state of Louisiana, for example, has presumption laws that apply to firefighters. Rebutting these laws is virtually impossible, so litigation is more likely going to address what type of benefits are owed. The presumptions address heart and lung disease that presents up to five years after employment as well as cancer that presents up to 10 years after employment. The cancer presumption is quite narrow and only covers specific cancers that are caused by heat, smoke or radiation.
Louisiana recently amended their statutes to include a PTSD presumption for first responders, including police officers, emergency medical technicians, firefighters, sheriffs and sheriffs’ deputies. The only limitation in place on this presumption is that diagnosis must be made by a licensed psychiatrist or psychologist.
Recent legislation in Louisiana that sought to expand presumptions to include healthcare workers who contract COVID-19 has failed. It’s possible that we may see claims under the occupational disease section, but the virus is not a normal hazard of most occupations, so that may not be valid. At any rate, it will be difficult to ascertain where the virus was contracted.
While presumption laws are common, they are not easy to litigate. There is an intensive fact-finding burden placed on the employee. For example, in Pennsylvania, the cancer presumption amendment states that the employee must have been exposed, at work, to a chemical shown on a specified list of cancer-causing chemicals. The employee also must show that they had a pre-employment health screening that did not find any of the covered cancers.
For COVID-19 specifically, some Pennsylvania employers are using a statute that allows the employer to accept liability for 90 days, without accepting for the entire claim. This 90-day period is enough time for treatment in most COVID-19 cases. At some point, we will probably see additional litigation for the more serious cases. This temporary benefit, however, gives employees a feeling that they have a safety net and makes them more comfortable returning to work.
These presumption laws are easily understandable as public policy and could help entice people to take on these jobs. However, we need to educate the public more thoroughly on what is involved in presumption law litigation. It is not always the “slam dunk” the employee thinks it will be.
It is difficult to say where the judiciary will fall in these cases as they are fact-based and decided individually. One reason that first responders have presumption laws in place is that they have the lobbying power to get that special carve out, where other occupations may not have that ability. In presumption law litigation, the credibility of the employee is very important. However, many cases depend on the testimony of experts in the healthcare and scientific fields.
The relationship between these occupations (first responders) and certain diseases is supported by science. However, it can be difficult to determine whether a disease is a direct result of the occupation. One in two people in the United States will develop cancer in their lifetimes. There is a difference between lifestyle factors (obesity, smoking, alcohol use) and occupational risk factors (smoke inhalation, asbestos exposure). Determining which type of risk factor led to the disease is the challenge.
As far as COVID-19 is concerned, the disease can be contracted anywhere. The best ways to prevent it are social distancing and mask wearing. However, there are some occupations that increase the risk of contraction, such as healthcare settings and settings in which many people are confined in a small space, like meatpacking plants. One of the most difficult things to determine will be in the case of COVID-19 deaths. The virus causes an inflammatory response that puts stress on the respiratory and cardiovascular system and could cause death. For those with underlying conditions, it also exacerbates those issues, which could lead to death. We will likely see litigation in these cases.